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[2019] ZANCHC 6
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S v Cloete (K/S33/18) [2019] ZANCHC 6 (29 January 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTHERN
CAPE DIVISION, KIMBERLEY)
Case No. K/S33/18
Heard on:
28/01/2019
Delivered on: 29/01/2019
In the
matter of
THE
STATE
V
HENKIE
CLOETE
JUDGMENT
PAKATI J
[1] The
accused, Mr Henkie Cloete, a male of 49 years of age, appears before
me on a charge
of murder read with the provisions of section 51 of
the Criminal Law Amendment Act, 105 of 1997 (“the Act”).
It is
alleged that he murdered the deceased, Sussana Abel. The
incident is alleged to have occurred at Middelstraat 18, Leerkrans,
in
Upington on or about 29 to 30 April 2017. He is represented by Mr
Steynberg of Legal Aid South Africa.
[2] The
accused pleads guilty to the charge and Mr Steynberg, on his behalf,
read into
the record a statement in terms of section 112 (2) of the
Criminal Procedure Act, 51 of 1977 (“the CPA”), which he
handed up as Exhibit “A”. It reads thus:
‘
I, the undersigned, Henkie Cloete, declare as
follows:
1. I am an adult male and the accused in this
matter.
2. I make this statement freely, voluntarily and without
being unduly influenced thereto. I am also [in] my sound
and
sober senses.
3.
I understand the charge of murder as set out in the indictment, and
confirm that my legal representative, Mr Steynberg, explained
the
applicable minimum sentences as set out in section 51 (1) and 51 (2)
of Act, 105 of 1997 to me.
4.
I also confirm that he explained the competent verdicts with regard
to the offence of murder to me.
5.
I plead guilty to a count of murder read with the provisions of
section 51 (2) of Act, 105 of 1997, as I do not admit that this
offence was planned or pre-meditated.
6.
I wish to make the following admissions:
6.1 I admit that I assaulted Sussana Abel (hereinafter
the deceased) on 30 April 2017 by hitting her with a broom on the
head and
also by kicking her multiple times over her body.
6.2 I admit that when I assaulted the deceased as set
out above, I did not have any grounds of justification to do so.
6.3 I admit that the deceased died on 30 April 2017 as a
result of the injuries sustained during the above assault.
6.4
I consequently admit the content of the report on the Medico-Legal
Autopsy compiled by doctor George Albertus Isaacs on 08 May
2017, and
also admit the cause of death as set out in the report as being
anoxia (lack of oxygen).
6.5 Even though it was not my direct intention to kill
the deceased, I foresaw that there was a possibility that the assault
on
her might cause her death, and I recklessly proceeded with my
actions.
6.6 Whilst assaulting the deceased, I knew that my
actions were wrong and that I could be punished for it.
6.7 Even though I was strongly under the influence of
alcohol, it did not affect me to such an extent that I did not know
what I
was doing. The consumption of alcohol exacerbated my anger and
made me to care less about the result of my actions even though I
foresaw that it may cause her death.
6.8 I admit that the offence was committed at
Melkstroom, Upington, within this Honourable Court’s
jurisdiction.
6.9 I admit that the body of the deceased was correctly
identified as that of Sussana Abel, and I also admit that the body of
the
deceased did not sustain any further injuries from the time she
was removed from my house up until the post mortem was conducted
by
Dr Isaacs.
7. The basis [of] my plea is as follows:
The deceased and I were in a love relationship. We were
living together. On the day of the incident we consumed alcohol at
Melkstroom,
where after we proceeded home. When we arrived at home
both of us were already strongly under the influence of alcohol. We
continued
to consume alcohol. The deceased and I got into an
argument. We argued over the fact that the deceased always asks [for]
money
from me to go home, which money she uses to buy alcohol and
drugs, instead of going home. During our argument, my brother, Japie
Cloete, who was also present, left the house. The alcohol exacerbated
my anger during the argument and I hit the deceased on the
head with
a big broom. The deceased left the house and proceeded towards the
veld. I followed her and grabbed her where after she
fell to the
ground. We argued and I kicked her multiple times over the body and
head. When I assaulted the deceased as set out
above, I did not have
the direct intention to kill her. I, however, admit that I foresaw
the possibility that the assault on her
may result in her death, but
I recklessly proceeded with my assault on her. I therefor admit the
form of intent as being
dolus eventualis.
After kicking the deceased, she was lying
unconscious in the veld where after I took her back into the house. I
tried to wake her
up but did not succeed. My brother arrived in the
morning and called the ambulance.
8.
Not only do I regret my actions, I am also remorseful for causing the
death of Sussana Abel.
9.
I ask the Honourable Court to have mercy on me.’
[3] After
consultation with the accused Mr Steynberg added the following
information after
I asked questions in order to clarify some issues
referred to in the plea explanation thus:
3.1 That on the day of the incident the accused and the
deceased consumed wine called Rooi Prop but the accused could not
estimate
how much liquor they consumed;
3.2 That the accused used aluminium broom to assault the
deceased and assaulted her using the part that is used for sweeping;
3.3 That at the time the deceased was assaulted with the
broom she was on her feet and when kicked she was lying on the ground
rolling
around trying to ward off the blows;
3.4 That the accused is not sure of the time the
incident took place but estimates that it was around midnight;
3.5 His brother, Mr Japie Cloete, arrived at the
accused’s place between 08h00 and 09h00 and that is the time
that he summoned
the ambulance; and
3.6 The deceased was already certified dead the same day
(30 April 2017) when photos were taken around 11h10am.
The accused confirmed the contents of the plea
explanation.
[4] State
counsel, Ms K Jansen, confirmed that the contents of the plea
explanation were
consistent with the version as contained in the
docket and accepted the accused’s plea of guilty to murder read
with the
provisions of section 51 (2) of the Act as tendered. She
indicated that no one witnessed the incident. By consent between the
State
and defence a photo album, key to photos and sketch plan were
allowed as Exhibit “B” and the defence admitted the
contents
of the post-mortem report (Exhibit “C”).
Regarding the chief autopsy findings Advocate Jansen called Dr Isaacs
to testify.
[5] Dr Isaacs
recorded the chief autopsy findings as follows:
·
‘
Superficial laceration of 2 x 1cm
of the forehead on the right. (A)
·
Both eyes swollen with peri-orbital
bruising. (B)
·
Three lacerations of the inside of
the upper lip (C)
·
Two lacerations of the inside of the lower
lip. (D)
·
Superficial laceration of 1.5 x 0.4cm
above the left eye. (E)
·
Superficial laceration of 3 x 1.5cm of the
forehead on the left. (F)
·
Confluent bruises and swelling of the
right side of the face. (G)
·
Laceration of 4.5 x 1.5cm of the scalp of
the right temple. (H)
·
Superficial laceration of 2.5 x 0.5cm of
the scalp of the left temple. (I)
·
Confluent bruising and swelling of the
left side of the face. (J)
·
Bruises and abrasions of the front of the
neck. (K)
·
Bruise of 4 x 2.5cm and small abrasion of
the front of the right shoulder. (L)
·
Four bruises over an area of 9 x 7cm of
the front of the right upper arm. (M)
·
Linear abrasions over an area of 9.5 x
37cm of the right lower chest and abdomen, from below the breast to
the inguinal region.
(N)
·
Bruise of 10 x 6cm of the right forearm.
(O)
·
Patchy bruises over an area of 19 x 5cm of
the front of the right upper thigh. (P)
·
Linear scratches over an area of 2 x 1.5cm
of the front of the right middle thigh. (Q)
·
Impact abrasion and bruises of 4 x 3.5cm
of the right knee. (R)
·
Linear abrasions and bruises over an area
of 20 x 5cm of the right shin. (S)
·
Bruise of 3.5 x 3cm of the inside of the
left ankle. (T)
·
Deep abrasion of 3 x 1.5cm of the lower
left shin. (U)
·
Bruise of 4 x 2cm of the middle left shin.
(V)
·
Bruise of 7 x 2cm of the upper left shin.
(W)
·
Bruise and abrasions of 7 x 3cm of the
left knee. (X)
·
Bruise of 12 x 3cm of the inside of the
lower left thigh. (Y)
·
Superficial linear abrasions of 7 x 2cm of
the upper left thigh below the groin. (Z)
·
Bruise of 10 x 3cm of the left forearm.
(AA)
·
Bruise of 7 x 5cm of the inside of the
left elbow. (AB)
·
Superficial abrasions and bruises over an
area of 20 x 10cm of the left lower chest. (AC)
·
Bruise and abrasions of 22 x 12cm of the
left shoulder and upper arm (AD)
·
Bruise of 6.5 x 5.5cm over the left
clavicle. (AE)
·
Impact abrasions and superficial scratches
over an area of 10 x 12cm of the back of the chest on the left,
overlying the scapula.
(AF)
·
Bruise and swelling of 13 x 8cm of the
back of the left hand. (AG)
·
Deep linear abrasions of 24 x 5cm of the
back of the lower leg and heel. (AH)
·
Bruise of 14 x 5cm of the back of the
middle right thigh. (AI)
·
Superficial abrasions of the back of the
right forearm (AJ)
·
Superficial abrasions of 4 x 3.5cm of the
right elbow. (AK)
·
Bruise of 7 x 5cm of the back of the lower
chest on the right. (AL)
·
Impact abrasions and superficial scratches
over an area of 11 x 10cm of the back of the chest on the right,
overlying the scapula.
(AM)
·
Bruise of 8 x 4.5cm of the back of the
right shoulder. (AN)
·
Dried blood in the nostrils.
·
Extensive subscapular bleeding.
·
Deep muscle bruising of the muscles of the
front of the neck.
·
Brain swollen with extensive subarachnoid
bleeding involving both hemispheres.
·
Fracture of rib 7 on the right over the
lateral aspect.
·
Fracture of rib 5 on the left over the
front.
·
Oedema of both lungs.
8. That, as a result of my observations, a schedule of
which follows, I have decided:-
(a) That the death has occurred approximately
1.9 to
2.2 days
prior to my examination and
(b) That the cause of death is:
BLUNT TRAUMA TO THE
HEAD
(c) That the mechanism of death is:
ANOXIA (LACK OF
OXYGEN)
(d) That the manner of death is:
ASSAULT
(UNNATURAL)
.’
Dr Isaacs explained that the alphabet in brackets
corresponds with the injuries and marks as depicted in the sketches
attached to
the post mortem report for better comprehension.
[6] Dr Isaacs
explained the following terms:
6.1 Peri-orbital means around the eyes.
6.2 Confluent takes place when a bruise merges into
another and form one big bruise. These types of injuries are visible
during
examination.
6.3 Subscapular bleeding – It is bleeding
underneath the scalp.
6.4 Subarachnoid bleeding – The brain has
coverings and membranes, the outer tough membrane underlying the
inside of the skull,
the layer covering the brain called arachnoid
which is underneath the membrane.
6.5 Oedema of both lungs – is fluid that
accumulates inside the lungs.
6.6 Lateral aspect is the front of the chest and the
lateral side is the side of the chest where the arm rests.
[7] Regarding
the brain Dr Isaacs,
inter alia
, mentioned that there is
evidence of trans-tentorial and tonsillar herniation of the brain. He
explained that the brain has two
halves separated by a membrane
called tentorial. Underneath the tentorial there is an opening where
the two halves of the brain
are connected. When there is a swelling
on the brain especially if one side is swollen more than the other
then the one side is
pushed across to the other side where it is not
supposed to be. That is called herniation. Tonsillar herniation is
the same concept
as herniation. He explained further that at the
bottom of the skull there is an opening where the spinal cord goes
through. Just
on top of the opening there is the mid-brain and the
cerebellum which is the small brain at the back of the head and
bottom of
the bigger brain. When the brain swells the mid-brain and
the cerebellum are pushed down into the opening. In the mid-brain and
the upper part of the spinal cord is an area of the brain called the
medulla oblongata. In that part of the brain is the respiratory
centre of human beings. When the brain is pushed down it then
compresses that area and a patient will have respiratory problems
which will eventually lead to lack of oxygen as the patient will not
breathe properly. This is referred to as the mechanism of
anoxia and
it leads to death due to lack of oxygen. He explained further
that serial coronal sectioning of the brain happens
when during
autopsy when there is evidence of swelling. The brain is cut into
slices which enables them to inspect the brain more
closely and
observe the swelling clearly.
[8] Taking
into account the accused’s section 112 (2) statement in
paragraph 2
supra
I am
satisfied that the accused committed the murder of the deceased with
the constructive intention to murder,
dolus
eventualis
.
In
the circumstances the following verdict is returned:
The accused, Mr Henkie Cloete, is found guilty of the
murder of the deceased, Sussana Abel, with
dolus
eventualis
as a form of intent.
BM
PAKATI
JUDGE-NORTHERN
CAPE DIVISION, KIMBERLEY
For
the Accused: Mr
Steynberg
Instructed
by:
Legal Aid of South Africa, Kimberley
For
the State:
Adv C Jansen
Instructed
by:
Directors of Public Prosecutions